On Prosecutors Not ‘Directing’ the Ferguson Grand Jury

There is no shortage of half-the-story reporting from the mainstream media as journalists seek to frame our understanding of the grand jury’s imminent decision about whether to file an indictment in Ferguson. One theme being pounded in the last few days is that prosecutors are failing to “direct” the grand jury toward an indictment of Officer Darren Wilson in the shooting death of 18-year-old Michael Brown.

That is, after obligatory repetition of the bromide that a prosecutor can get a grand jury to indict a ham sandwich, it is explained that the prosecutors in Ferguson are not treating this grand jury as a puppet at the end of their strings. Instead, prosecutors are laying out all the evidence in detail, instructing the grand jurors on the relevant statutes that define potential offenses (e.g., intentional murder, manslaughter, etc.), and letting them decide for themselves rather than advocating for an indictment. This is said to demonstrate bias in the system because prosecutors typically ask for an indictment and push the jurors toward that result.

To the contrary, if there is bias in the system, it is almost certainly against Officer Wilson. In most cases where prosecutors decide not to charge a crime, they do not present the case to the grand jury in the first place. Moreover, the prosecutorial discretion not to seek an indictment is informed by the standard of proof that applies at trial.

At the indictment stage, the standard is mere “probable cause”; at trial, the standard is much tougher for the state – “proof beyond a reasonable doubt.” It is perfectly proper to indict someone if you believe there is a good reason to suspect he committed the crime, even if you weren’t overwhelmed by the prosecutor’s presentation and wouldn’t be surprised if the state lost the case at trial. After all, the indictment doesn’t convict anyone; it simply means the case will be tried to a jury. By contrast, at that trial, the prosecutor’s “beyond a reasonable doubt” burden is much tougher; the accused has counsel and heightened due process rights not available to him at the grand jury stage; and the jury must be unanimous to convict (a grand jury need only have a super-majority – in Ferguson, it is a vote of nine out of twelve grand jurors; in federal court, it is 16 of the 23 grand jurors).

There are many cases in which it is possible to establish probable cause but where it would be highly unlikely to prove the case beyond a reasonable doubt. In normal cases, prosecutors do not waste their time indicting cases that technically satisfy the probable-cause standard if they know the chance of conviction at trial is slim to none.

The case in Ferguson is not normal. Because of the highly charged atmosphere — irresponsibly stoked by the Obama administration (especially its Justice Department) and other racialists and rabble-rousers — the prosecutors are not taking it upon themselves to make the decision that the case does not merit being indicted. They are thus presenting a case to the grand jury that ordinarily would not be presented — in essence, dropping it in the lap of the grand jury, the community’s representatives, rather than being on the hook themselves for the decision. Presumably, prosecutors have also resigned themselves to taking the case to trial if the grand jury decides to file charges . . . even if prosecutors believe the case is a loser at trial.

None of this is legally improper. If the grand jury decides there is probable cause of a crime, it need not worry about whether the case is compelling enough to convict at trial — that’s for the prosecutors and the trial jury to worry about. The point is that, in the vast run of cases, prosecutors would not put grand jurors, the community, and the subject of an investigation through the paces of a grand jury investigation of a weak case. They would decide on their own to dismiss the matter.

So Officer Wilson is not a beneficiary of the prosecutors’ unusual decision not to direct the grand jury toward an indictment. He is more likely the victim of the prosecutors’ refusal to drop an investigation that would ordinarily have been dismissed without charges without presentation to a grand jury.

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